Tumber v Independent Television News Ltd (ITN) & Anor

Factual and Procedural Background

In January, the Plaintiff wrote a lengthy love poem, which gained publicity and was subsequently noticed by the first Defendant, a well-known TV news producer referred to as "Company A". Company A creates news content for an ITV website operated by the second Defendant, "Company B," the parent company of regional ITV companies. Permission was granted to join a subsidiary of Company B as a third Defendant, "Company C".

On 24 May 2017, an employee of Company A contacted the Plaintiff regarding a potential interview and article about the poem on the ITV website. The Plaintiff provided a copy of the poem, which was published on the website later that day and remained available for just over 24 hours before being removed following the Plaintiff's complaint.

During the publication period, 137 unique users viewed the poem on the website. Additionally, three external websites, not controlled by the Defendants, linked to or copied the poem. The Defendants deny authorising or being aware of these third-party actions.

On 26 June 2017, the Plaintiff commenced proceedings against the Defendants for copyright infringement, seeking an injunction and damages. The Defendants admit copyright subsists in the poem and that the Plaintiff owns it but deny infringement on grounds including implied licence, estoppel, fair dealing under section 30(2) of the Copyright, Designs and Patents Act 1988, lack of authorisation for third-party infringements, and abuse of process.

The matter came before the court at a case management conference with multiple applications, including the Plaintiff's application to strike out the Defendants' implied licence defence or for summary judgment under CPR Part 24.

Legal Issues Presented

1. Whether the Defendants have no prospect of successfully defending the claim based on an implied licence to publish the poem.
2. Whether the defence of estoppel is sustainable.
3. Whether the defence of fair dealing under section 30(2) of the Copyright, Designs and Patents Act 1988 applies.
4. Whether the claim should be allocated to the small claims track.
5. Whether the claim should be struck out on the basis of abuse of process or under the principles established in Jameel (Yousef) v Dow Jones & Co Inc.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that there was no implied licence granted to the Defendants to copy and publish the poem, especially not by silence or custom and practice.
• It was argued that the defence of implied licence based on silence is not legally valid.
• The Plaintiff did not advance any compelling reason to dispose of the case at summary judgment beyond the implied licence issue.
• The Plaintiff relied on authorities to support that the trial judge would be better placed to decide the implied licence issue rather than summary judgment.
• The Plaintiff opposed allocation to the small claims track due to concerns about costs and complexity disproportionate to his financial resources.

Defendants' Arguments

• The Defendants pleaded an implied licence arising from the Plaintiff sending the poem to Company A's employee without qualification, intending publication in connection with news coverage.
• They argued that custom and practice in media dealings supports an implied licence to publish material sent without reservation.
• The Defendants relied on the telephone conversation between their employee and the Plaintiff as supporting the implied licence defence.
• They also pleaded estoppel, fair dealing under section 30(2) of the 1988 Act, and denied authorisation of third-party infringements.
• On fair dealing, they argued the publication was accompanied by sufficient acknowledgement and did not compete commercially with the Plaintiff's exploitation of the work.
• The Defendants sought allocation to the small claims track, waiving the £10,000 damages cap if necessary.
• They contended the Plaintiff's conduct in litigation was improper and abusive, seeking to generate publicity from the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the implied licence defence in two limbs: first, whether the telephone conversation and exchanges between the Plaintiff and Company A's employee created an implied licence; second, whether custom and practice in media dealings implied a licence.

The court found no pleaded or evidential basis to support an implied licence arising from the telephone conversation and rejected this limb as having no prospect of success. However, the court was not prepared to strike out the implied licence defence based on custom and practice, acknowledging some uncertainty and the need for trial evidence on this point.

Regarding estoppel, the court considered it closely tied to the implied licence defence and, lacking sufficient merit and failing the cost/benefit test, decided it would not proceed further with this defence.

On the fair dealing defence, the court relied on established authorities emphasizing the key factors: whether the dealing competes commercially with the copyright owner, whether the work was already published, and the amount taken. The court noted that the possibility of increased sales due to publicity could negate commercial competition, thus not striking out this defence.

On allocation to the small claims track, the court expressed concern about the Plaintiff's ability to recover costs if the case became complex due to the Defendants' greater resources, deciding not to allocate the case to small claims despite the Defendants' waiver of the damages cap.

The court rejected the strike out application based on abuse of process and improper conduct, finding the Plaintiff's behaviour unwise but not improper as defined in precedent.

The court also noted that the Defendants could protect their position via a Part 36 offer and that sales figures, while relevant for trial and costs, did not affect the current applications.

Holding and Implications

The court STRUCK OUT the implied licence defence insofar as it was based on the telephone conversation but REFUSED TO STRIKE OUT the implied licence defence based on custom and practice, as well as the fair dealing defence.

The estoppel defence was effectively dismissed for lack of merit and cost/benefit considerations.

The court declined to allocate the case to the small claims track, concerned about the Plaintiff's ability to recover costs in a potentially complex trial.

The application to strike out the claim on grounds of abuse of process was refused, with the court finding no improper conduct warranting dismissal.

Consequently, the case will proceed to trial on the remaining issues, with no new legal precedents established by this decision. The Defendants retain the option to make a Part 36 offer to manage costs and exposure.